Te Rūnanga-ā-Iwi o Ngāti KahuLand Claims Report for August 2013
1. Offer from Crown to fully and finally extinguish Ngāti Kahu’s claims
2. Judicial Review of the Waitangi Tribunal’s Report – on-going
3. Ngāti Kahu Trust Board Taking Legal Action Against Ngāti Kahu Mortgage Services Ltd
4. Appeal to the Supreme Court on Te Ana o Taite – on-going
5. National Iwi Chairs’ Forum Hui – 8-9 August, Tainui hosted
6. Taitokerau Iwi Chairs Hui – 13 August
Summary:
We have finally received an offer from the Minister of Treaty Negotiations to extinguish all of Ngāti Kahu’s historical claims. The conditions of the offer are punitive with Ngāti Kahu being expected to give up almost all of our lands and our mana and sovereignty in return for the Crown relinquishing 4518 hectares of our lands and paying us approximately $9 million.
Our application to review the Waitangi Tribunal will depend on the instructions of whānau, hapū and marae in respect of the Crown’s offer.
The Ngāti Kahu Trust Board is still continuing with its action in the High Court against Ngāti Kahu Mortgage Services Ltd.
We are awaiting a decision from the Supreme Court on our application for the protection of Te Ana o Taite.
We attended the National Iwi Chairs’ hui hosted by Tainui at their complex at Hopuhopu on 8 August and the Taitokerau Iwi Chairs’ hui on 13 August at Kaikohe hosted by Ngāpuhi.
1. Offer from Crown to fully and finally extinguish Ngāti Kahu’s claims
We have finally received an offer on our land claims from the Minister of Treaty Negotiations but it is to extinguish all of Ngāti Kahu’s historical claims. The offer has been widely circulated to all those on the Rūnanga email list. Anyone else who would like a copy of the offer, please contact the Rūnanga office. We will go over it and discuss what we are going to do with it at our next Rūnanga hui on 24 August at Kēnana marae.
The conditions of the offer are extremely punitive with Ngāti Kahu being expected to permanently give up almost all of our lands (including removing all 27B memorials) and our mana and sovereignty in return for the Crown relinquishing 4518 hectares of our lands to our control and paying us approximately $9 million in cash. In respect of our lands, this is just 3% of what the Crown stole from us and less than 0.1% if we count in the foreshore and seabed. In terms of monetary compensation, it is a tiny 0.3% of the $3.2 billion that economist Dr Ganesh Nana estimated we had lost in income. It is far too small to restore Ngāti Kahu’s economic base. The cost of administering lands being relinquished would mean there would be very little cash left for much else for Ngāti Kahu if we were to accept this offer.
The Rūnanga’s current mandate does not allow us to accept such an offer as a full and final settlement but we do have a mandate to accept something like this as a partial settlement and to leave it for the following generations to pursue the recovery of the rest of our lands and compensation.
A commentary and analysis of this offer is appended to the end of this report. It compares it to our Ngāti Kahu Settlement Package (our Yellow Book), our Deed of Partial Settlement and the recommendations of the Waitangi Tribunal.
2. Judicial Review of the Waitangi Tribunal’s Report – on-going
Barrister Royden Hinden needs to know our decision on the Crown’s offer before he can continue preparing an application to the High Court for a judicial review of the Waitangi Tribunal’s refusal to grant us binding recommendations ordering the Crown to return some of our lands. If we can get some of our lands relinquished through this process we will have at least something to start trying to rebuild Ngāti Kahu’s economic base without having to give up the rest of our lands or our mana.
3. Ngāti Kahu Trust Board Taking Legal Action Against Ngāti Kahu Mortgage Services Ltd
The Ngāti Kahu Trust Board is still continuing with its action in the High Court against Ngāti Kahu Mortgage Services Ltd seeking to have the $1.6m of debt it owes that company (and the Rūnanga/marae of Ngāti Kahu who own the company) written off. Following the instructions from our April hui that the debt is not to be written off and that any attempts by the Trust Board to do so are to be rigorously opposed, we have filed all the necessary papers in the High Court. Our lawyers have been asked by the Trust Board’s lawyers to consider settling the matter out of court.
4. Application to the Supreme Court on Te Ana o Taite
We are awaiting a decision from the Supreme Court on our application for leave to appear before them on the matter of the protection of Te Ana o Taite. Our application seeks to have Carrington Farms and the Far North District Council adhere to the out of court settlement in which they both agreed that no development would take place within 800 metres of the mean highwater mark. That agreement protects Te Ana o Taite from desecration and prevents any building or development activity there. Carrington Farms will be free to build anywhere else to the landward side of the 800 metre setback.
5. National Iwi Chairs’ Forum Hui – 8-9 August, Tainui hosted
Several of our Taumata Kaumātua o Ngāti Kahu attended this hui and some interesting and important information was shared about freshwater negotiations, foreign charter vessels, family violence, the incarceration of Māori who have been under CYFPS and our constitutional transformation work.
Freshwater negotiations over the ownership of water are proving difficult and frustrating for the iwi leading this. Although they have made very good progress with the large number of stakeholders who make up the Land and Water Forum, they cannot get the government to keep to its promise it made to the Supreme Court that it would address the matter of Māori rights and interests in fresh water.
The Foreign Charter Vessels issue is turning into a debacle as an inexperienced Minister lurches from one mistake to the next. First he promised to protect Māori quota and the conditions of our fisheries settlement. Then he reneged on that under pressure from large Pākehā fishing interests. It is unclear what will happen because it appears he does not have sufficient support to get the bill passed.
The Forum has a working group on family violence and Judge Carolyn Henwood gave a presentation about the extremely high numbers of children who come under CYPS and who end up in prison. She was asking the Forum to help the Henwood Trust that she has established to see if they can identify any solutions for this problem. I have asked our CEO, Anahera Herbert-Graves, to meet with Judge Henwood.
Matike Mai Aotearoa – the Constitutional Transformation Working Group will be completing its first round of hui at the end of this month. We will then start to write up a model for a constitution for the country based on tikanga, He Whakaputanga o te Rangatiratanga o Niu Tireni, Te Tiriti o Waitangi and the recommendations from the 180 hui conducted to date around the country. Once that is completed we will take it to a second round of hui for feedback. An interim report on the model will be prepared for the November hui of the Forum.
One of the Forum working groups had invited the Office of Treaty Settlements to the November Forum hui. At my request, that invitation will be withdrawn.
Local Government New Zealand sent a large number of mayors and CEOs from a range of regional and district councils to see whether they could establish stronger relations with iwi in their respective rohe. Taitokerau councils were notably absent. The group that attended were very interesting and were led by the chair of the Greater Wellington Regional Council, Fran Wilde. Those attending reported on some very good relationships that have been established with iwi and their intention to shame other councils into doing the same. Mā te wā.
6. Taitokerau Iwi Chairs Hui – 13 August
Several of our Taumata Kaumātua attended this hui which focused on mining in Te Taitokerau. The government Minister responsible for this area, Simon Bridges, attended the first part of the hui. He was told of the very widespread and deeply held opposition to mining by iwi, hapū and whānau, the lack of information and accountability of both government and mining companies, the need to address the ownership of minerals which the Crown stole in the 1930s by nationalizing them and which the Tribunal has said repeatedly belong to Māori and the very negative accounts of those with experience of mining.
I told the Minister that there will be no mining in Ngāti Kahu’s rohe and only Ngāti Kahu hapū can authorize any activities in our territories, not the Crown or the councils. Some iwi chairs said they would support whatever their hapū wanted. One iwi chair, Te Rarawa’s Haami Piripi, indicated that he would be interested in looking at royalties that could be earned from mining. This ran against what the rest of the hui was saying including several Te Rarawa hapū.
The rest of the hui dealt with renaming the Taitokerau Iwi chairs as Te Kahu o Taonui; repeating the report I delivered the week before at National Iwi Chairs’ Forum on the constitutional working party’s activities; other iwi, but not Ngāti Kahu, supporting Rangitāne Marsden talking with government about local government matters; other iwi supporting the coordination of Māori representation in the United Nations. I abstained for Ngāti Kahu on this last one because I know that the person who put up this proposal has been asking for several years to be allowed to speak for all Māori in the UN even though her views are often contrary to those of most iwi and hapū.
Professor Margaret Mutu
15 August 2013
Commentary and Analysis of the
Crown’s Offer for the Extinguishment of All Ngāti Kahu Historical Claims
Received 7 August 2013
Overview and Summary
The Crown’s offer is that it will legislate the full and final extinguishment of all Ngāti Kahu historical claims, including those still being heard and those yet to be heard by the Tribunal, in exchange for the Crown
· Relinquishing its claims to 4518 hectares of Ngāti Kahu land (3% of what it stole) and issuing title for them recognising Ngāti Kahu’s ownership (and in some cases with other iwi as well);
· Relinquishing a further 1489 hectares of Kohumaru and Ōtangaroa lands but only if Ngāti Kahu ki Whangaroa agrees;
· Acknowledging Ngāti Kahu ownership of a further 958 hectares but retaining control of them as Crown reserves;
· Acknowledging Ngāti Kahu ownership of 39 hectares of school lands but requiring them to remain as schools;
· Acknowledging Ngāti Kahu ownership of Rangiāniwaniwa but requiring us to share it with Ngāi Takoto and that it remain as an airport and kura;
· Leaving several hapū with little or no lands relinquished in their territories;
· Offering Ngāti Kahu (and for most lands, other Te Hiku iwi as well) the right of first refusal over the next 172 years to purchase a further 21,258 hectares at full market price;
· Withdrawing its agreement to the Ngāti Kahu Statutory Board for lands currently administered by DoC;
· Paying Ngāti Kahu very approximately $9 million in cash (less than 1% of what is owed);
· Allowing the Crown Forestry Rental Trust to release the approximately $2.6 million in rental monies it holds from Crown forests growing on Ngāti Kahu lands;
· Allowing Ngāti Kahu to draw up plans, write reports and provide advice for a number of Crown and local body agencies who in turn will decide whether or not these should be given any consideration ;
· Writing its version of the historical account of Ngāti Kahu including stating that Ngāti Kahu has ceded our sovereignty (and mana and rangatiratanga) to the British Crown.
The Rūnanga’s mandate does not allow us to accept such an offer. We will discuss with the marae, whānau and hapū what to do with it, starting at our next hui-ā-marama.
Outline and Commentary on the Crown Offer
In February this year rather than making the binding recommendations that we sought, the Waitangi Tribunal recommended to the Crown that it make an offer to Ngāti Kahu to settle our claims up to 1865 that were all upheld by the Tribunal in 1997. The Tribunal laid down detailed instructions as to how that offer should be made. This week we received the offer in the post. While it follows some of the Tribunal’s instructions, there are a number of important aspects that the Crown has refused to comply with.
1. The offer is couched in “take it or leave it” terms.
2. The offer is for a full and final extinguishment of all Ngāti Kahu historical claims (which includes all those that have yet to be heard or reported on). This is contrary to the Tribunals recommendations that the offer be for a settlement of claims to 1865 only. The Crown has refused to comply with this recommendation. It is also contrary to our Deed of Partial Settlement.
Land
3. In terms of land, the Crown has offered to relinquish several thousand hectares in the rohe of five of our hapū, several hundred hectares in the rohe of three of our hapū and less than 10 hectares in the rohe of three hapū. For two (and possibly three) hapū no land will be relinquished in their rohe (see the schedule for a list of lands included in the offer).
4. Many thousands of hectares of key lands, including many wāhi tapu, set out in the full and final settlement package described in our Yellow Book (The Ngāti Kahu Settlement Package) are not included in this offer. Our Deed of Partial Settlement (DoPS) allows for only a small portion of our lands being relinquished, although this offer contains far less than is what is listed there. Our DoPS is conditional on hapū sharing and the settlement being partial rather than full and final.
5. The offer is for the Crown to relinquish up to 4,518 hectares of our lands. This is contrary to our Yellow Book, our DoPS and the Waitangi Tribunal’s recommendations. It is just 3% of the 137,023 hectares the Crown stole from us and less than 0.1% of our lands if we take into account our foreshore and seabed.
6. The Crown says it will relinquish a further 1489 hectares to us but only if Ngāti Kahu ki Whangaroa agrees that Kohumaru can be held by Matarahurahu. The Tribunal recommended that Kohumaru and those parts of the Ōtangaroa in our rohe be returned to us. The Crown has refused to comply on this point. This is also contrary to our Yellow Book and our DoPS. These lands should be relinquished to Ngāti Kahu control now.
7. The Crown will acknowledge Ngāti Kahu ownership of a further 958 hectares but those lands must remain as Crown reserves and/or we must guarantee that the public has access to them, regardless of whether they are wāhi tapu or not (and some are). The Crown intends to prevent us using those lands for our own purposes. The Minister of Conservation will continue to make decisions in respect of those lands (in practice DoC staff in the Kaitāia office) although we will be liable for the safety of the public on those lands. This is contrary to both our Yellow Book and our DoPS. These lands should be relinquished to Ngāti Kahu control and be free of any Crown imposed restrictions. Any use restrictions that are needed are for Ngāti Kahu to determine, not the Crown.
8. Paragraph 7 of the offer refers to the fact that the Crown may choose to withdraw any of these lands from the offer if third parties have an interest in them.
9. The Crown will acknowledge Ngāti Kahu ownership of a further 39 hectares that are currently school lands and must remain as such. We may, but at best only after many years, receive rental monies for those lands some of which we must share with other iwi.
10.The Crown will acknowledge Ngāti Kahu ownership of a further 86 hectares at Rangiāniwaniwa but we must share it with Ngāi Takoto. It must also remain as an airport and a kura. We may be able to receive rental monies for the airport.
11.Whakaangi was in our AIP as a matter to be resolved with Ngāti Aukiwa. Maungataniwha is to be agreed with Ngāpuhi (and Te Rarawa). They are not in this offer and should be. Neither are our lands on Te Oneroa-ā-Tōhē, at Te Make, at Tangonge, at Ngākohu, at Takahue, at Waitetoki, at Mangataiore, at Ōruru, at Taipā, at Aurere and many other places. This is a contrary to both our Yellow Book and our DoPS.
12.The Minister’s cover letter says that “over 7,000 ha of land” will be transferred. As the figures above show much less than that is designated to transfer to Ngāti Kahu ownership and control. However if all the Crown conditions and restrictions were removed and Ngāti Kahu ownership and control recognised and implemented over all these lands it would mean that the Crown was relinquishing 7090 hectares, some 5% of the lands the Crown stole from us.
13.Some of the lands the Crown is offering to relinquish are landlocked or have no formed access. Some of the buildings on some of them need demolishing or substantially renovating.
14.In respect of Rangiāniwaniwa, we are told to share this 50/50 with Ngāi Takoto (even though it is not theirs). However unless we complete a full and final settlement within 30 months of Ngāi Takoto settling, Ngāi Takoto will be offered 100% of Rangiāniwaniwa. This land was stolen from Kataraina Matenga’s whānau (the Erstich whānau) and the Crown intends compounding that crime by selling it to Ngāi Takoto. This is contrary to our Yellow Book and our DoPS. It is for Ngāti Kahu to determine what, if any, interest Ngāi Takoto may have in Rangiāniwaniwa.
15.Over the next 172 years we will have the Right of First Refusal to buy up to a further 21,258 hectares at full market prices if and when the Crown decides to sell our lands currently being administered by DoC, LINZ, Housing New Zealand and the Police. These lands do include small pieces of land in the territories of those hapū where no land is listed to be relinquished. This is another 16% of the lands the Crown stole from us.
16.The total amount of land that Crown is saying that it may relinquish, most of it by selling it to us, over the next 172 years is 28,348 hectares. This is 21% of what the Crown stole and 56% of the very approximately 50,000 hectares the Crown is required to relinquish to us unconditionally and at no cost as set out in our Yellow Book and DoPS for a full and final settlement. All these lands should be relinquished to Ngāti Kahu now.
17.The Tribunal recommended that the Ngāti Kahu Statutory Board for the administration of all lands currently administered by DoC agreed to in our AIP be set up. This is removed in this offer. Once again the Crown has not complied with the Tribunal’s recommendation. It is replaced by an offer for Ngāti Kahu to discuss setting up an “co-governance” arrangement whereby we will draw up plans and provide advice to DoC about our own lands (which they in turn will almost certainly ignore). There is nothing to suggest that this will be anything other than a waste of Ngāti Kahu time and resources. This has been included in the offer because Te Rarawa, Ngāi Takoto and Te Aupōuri have agreed to this type of arrangement and they have allowed the Minister of Conservation to decide who of their nominees will be appointed to a Te Hiku Conservation Board. The role of that Board is to provide advice to DoC about the lands of the hapū of those iwi. That approach supports the fiction of Crown supreme sovereignty and reduces hapū from mana whenua and kaitiaki to mere interest groups in respect of their own ancestral lands. It is not an approach that Ngāti Kahu supports.
18.We have been offered a place on a subcommittee of the Far North District Council and the Northland Regional Council that will draw up plans and provide advice to those councils on the management of Te Oneroa-ā-Tōhē (Ninety Mile beach). This approach confirms the fiction of the Crown being able to delegate authority to local Pākehā communities to override mana whenua and to reduce our power and authority over our ancestral lands to mere opinion as interested user groups. Again, this is not an approach that Ngāti Kahu supports.
“Social Accord”
19.We have been offered the opportunity to become a party to Te Hiku Social Accord. This would require us to employ a large number of policy advisors (using our own resources after the initial set up period), to write reports and provide advice to seven government departments on how they should conduct their business in our territories. Our organisation would come under the direction of the Ministry of Social Development. This would entail the building of a large bureacracy whose sole responsibility would be to provide advice to government bureaucrats (who have a long history of ignoring any advice we give). Like the previous two committee constructs entered into with Te Rarawa, Ngāi Takoto and Te Aupōuri, this also supports the notion of Crown supreme sovereignty and would be a complete waste of scarce Ngāti Kahu resources.
Money
20.In terms of money, the amount of cash the Crown will pay to us if we were to take all the lands offered along with a small amount of the Right of First Refusal lands (if the Crown will release them) is very approximately $9 million. This is a tiny 0.3% of the $3.02 billion that BERL economist Ganesh Nana told the Tribunal he estimated we had lost in income since 1840. Furthermore it is just 7% of the $130 million that Dr Nana concluded was required to re-establish an economic base for Ngāti Kahu.
21.In the offer an amount of $23.04 million is given as the “financial and commercial redress”. From this the Crown will deduct what it considers to be the monetary value of the land it is relinquishing. Based on the valuations the Crown provided to the Tribunal we estimate it intends to deduct approximately $14 million from that amount. In terms of this offer, the only way we can have the full $23.04 million in cash transferred to us is if we allow the Crown to keep almost all of the lands it has said it will relinquish.
22.The Tribunal recommended the Crown pay between $380,000 and $2.4 million for us to buy our own land from DoC. It has offered $380,000. The manner in which the Crown assigns monetary value to land indicates that very little land could be paid for with this amount of money.
23.The offer mentions monies possibly totalling $2.65 million due to us from Crown forestry rentals. These monies are ours as of right and not part of a settlement even though the Crown treats them as if they are.
24.An amount of $137,500 is offered to Te Hiku o Te Ika Development Trust – NOT to Ngāti Kahu – for certain activities relating to Te Oneroa-ā-Tōhē.
25.An amount of $812,500 is offered to Te Hiku o Te Ika Development Trust – again, NOT to Ngāti Kahu – if Ngāti Kahu sets up the necessary bureaucracy to implement the “Social Accord”.
26.The Minister’s letter refers to an amount of $43 million as the “value of the redress”. That amount of money is far in excess of all the money mentioned in the offer itself and, as such, the figure should be ignored.
Historical Account
27.The Tribunal recommended that the Crown seek to record an agreed historical account but if that was not possible the Crown should still implement the rest of its recommendations. The Crown has refused to comply with this recommendation. It stipulates in the offer that it, with (advice from) Ngāti Kahu, will write an historical account that we will have to agree to. In doing so it will set out who Ngāti Kahu are and its version of Ngāti Kahu’s history – a history which the Tribunal rejected in 1997 and which we rejected during negotiations. My reading of other Deeds of Settlement indicates that the Crown will insist that it record and that we agree that it has supreme sovereignty over us, our lives and all our lands, resources and territories; that we have ceded our sovereignty to the Crown; and that henceforth we will be loyal and faithful servants of the Crown.
In other words if we accept the Crown’s historical account we must turn our backs on our tūpuna and their undertakings set out in He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835 and Te Tiriti o Waitangi of 1840. We must also contradict all the evidence that they and we gave to the Waitangi Tribunal about the Crown’s incurable recidivist criminal behaviour. Deeds of Settlement also contain statements that hapū and iwi have knowingly foregone full compensation, have permanently given up almost all of their lands (which in our case would include agreeing to remove all 27B memorials currently on many land titles in our territories) and have allowed all their claims to be fully and finally extinguished in order “to contribute to the development of New Zealand”. The notion of even considering such an historical account for Ngāti Kahu is thoroughly repugnant to your Treaty of Waitangi claims negotiating team. We have already drafted an extensive and detailed historical account. It is in our DoPS. The only changes we will make to that are those requested by Ngāti Kahu.
Summary
Yellow Book 2000
Deed of Partial Settlement 2011
Waitangi Tribunal 2013
Crown Offer 2013
Full & Final OR Partial Settlement
Full and Final
Partial
Partial to 1865
Full and Final
Total lands to be relinquished by Crown
Approx 50,000 ha
Now: Approx 23,700 ha, rest in future generations
Now: 7,134.9092 ha
RFR: 18,702 ha (most shared with other iwi)
Now: 4,518.204 ha
Plus a further 2571.5298 ha with restrictions or conditions on use
RFR: 21,258 ha (most shared with other iwi)
Hapū without relinquished lands
None
None
1
3
Management of balance of DoC administered lands
Ngāti Kahu
Ngāti Kahu Statutory Board
Ngāti Kahu Statutory Board
DoC with Ngāti Kahu advice.
Cash
Compensation sufficient to reestablish economic base (approx $130m)
$23.04m now. Rest in future generations.
Very approx. $13m
Very approx. $9m
Social, political and spiritual recovery
Ngāti Kahu to decide and implement with resources provided by Crown
Ngāti Kahu to decide and implement with resources provided by Crown
No recommendation
Ngāti Kahu to provide plans, reports and advice to government bureaucrats on how they may determine Ngāti Kahu’s recovery.
I have compiled a schedule of lands that may be relinquished. It lists those that may transfer on settlement by marae and hapū so that you can see what lands in your rohe may be relinquished. The 7th column of that schedule indicates the types of conditions and restrictions the Crown intends to impose on the use of many of these lands. The Crown provided a second schedule which lists those lands we may have Right of First Refusal to for 172 years. I have not re-ordered this by marae and hapū.
The full list of documents provided are:
Ngāti Kahu compiled documents provided here:
i. Commentary and Analysis of the Crown’s Offer for the Extinguishment of All Ngāti Kahu Historical Claims Received 7 August 2013 (this document).
ii. Lands Schedule – Lands Crown will Relinquish to Ngāti Kahu in Full and Final Settlement of All Ngāti Kahu Claims (listed by marae and hapū of lands being relinquished: DoC, farms, OTS, LINZ, MoE, DSP).
Crown compiled documents (these were all circulated to the email group on 14 August).
iii. Covering letter from Minister of Treaty Negotiations dated 31 July 2013
iv. Crown Offer 2013 listed by historical account, “cultural redress” and “commercial redress”
v. Crown Offer 2013 Attachment 1 – Korowai Atawhai
vi. Crown Offer 2013 Attachment 2 – Te Oneroa-ā-Tōhē
vii. Crown Offer 2013 Attachment 3 – Te Hiku Social Accord
viii. Crown Offer 2013 Attachment 4 – Schedule of Right of First Refusal Properties
We will go through this offer in some detail at our next Rūnanga hui at Kēnana marae on 24 August and consider what to do with it.
Ngā mihi mahana
Professor Margaret Mutu,
16 August 2013